Dithering, Trickling Down, and Encoding: Concluding Thoughts on the ‘ILC Articles at 20’ Symposium

Twenty years ago, to this day, the ILC’s efforts at clarifying the rules of State responsibility came to an end. On 9 August 2001, the ILC finalised its work, begun just under four decades earlier, of spelling out  ‘the general conditions under international law for the State to be considered responsible for wrongful actions or omissions, and the legal consequences which flow there-from’ (at 31). This was no last-minute victory snatched from the jaws of defeat. What had begun in sub-committee meetings in early 1963, where Roberto Ago and encouraged the Commission to focus on the secondary rules of responsibility, ended not with a dramatic vote after multiple extensions of a conference — but in an orderly, perhaps even slightly anticlimactic process, faithfully recorded in the ILC Report for 2001 (at 25):

‘At its 2709th meeting, on 9 August 2001, the Commission decided … to recommend to the General Assembly that it take note of the draft articles on responsibility of States for internationally wrongful acts in a resolution, and that it annex the draft articles to the resolution.’

This did not go unnoticed among international law observers, if only because it meant that the perennial project of State responsibility now disappeared from the ILC’s agenda. But it did not prompt instant cheers and jubilations either. ‘Conventionalist’ commentators were unhappy with the recommended outcome: in their view, State responsibility, of all topics, cried out for a treaty, perhaps yet another Vienna Convention – so the ILC’s decision to play it safe and go for a ‘take note’ approach seemed underwhelming. The ‘community interest crowd’, having grudgingly come to terms with the demise of ‘Article 19 crimes’, mourned the loss of provisional draft Article 53, adopted in the interim text of 2000: this had expressly recognised a right of third-party countermeasures – but it met with some opposition in the Sixth Committee, and was replaced by the ‘fudgy’ Article 54 that continues to puzzle interpreters.  But even among those that saw the wisdom of these decisions – on form, on Article 19, on countermeasures – relief, perhaps exhaustion, was dominant, not triumph. And by the time the news had sunk in, and relief may have turned into delight or pride, the world discussed 9/11, that other, rather more dramatic international law event of the late summer of 2001.

So how did the story continue? It certainly did not end on 9 August 2001. Looking at the institutional side, the ILC had only passed on the baton to the General Assembly (GA). If the ILC at times, during the four decades since 1962, had seemed to dither on State responsibility, the GA has made dithering its modus operandi. Following the ILC’s suggestion, it duly ‘took note’ of the Articles on State responsibility, and commended them to the attention of Governments in Resolution 56/83 of 2001. (Note that the Resolution speaks of the ‘draft articles’ in the preamble, but then refers to the ‘Articles’ in its operative part and in the Annex, thus signalling that ‘this was it’ – at least in substance.) Other than that, though, in its engagement with State responsibility the GA has remained hesitant. It regularly discusses the topic, but then postpones the item for three years, before discussing further – and postponing again. The reason for this is simple: the GA Sixth Committee has agreed to proceed by consensus, and so far States’ preferences have not permitted consensus to emerge. Many States seem to share the views of the conventionalist observers sketched out above; they would wish to convene a diplomatic conference to adopt a text in treaty form. Other States would prefer their adoption as a declaration or resolution in the GA; others still would maintain the status quo, with no further action. The number of States expressly supporting the treaty option has increased over the years (now at over 90), while the number of States opposing it has remained relatively constant: smaller in number, but firm in its resistance, and so far successful in blocking any move towards the adoption of a GA declaration or a treaty conference. In its most recent session, in 2019, the Sixth Committee and its Working Group on State responsibility considered proposals to overcome the stalemate (including the possibility of considering procedural options on future action, or to increase or decrease the regularity with which the GA discusses the topic) – but none were followed. Like on groundhog day, the GA is now poised to reconsider the question in 2022. By which time 21 years will have passed since the adoption of the Articles – roughly twice as long as Roberto Ago needed to lay the foundation of the Articles in his eight reports (1969-1980), and five times as long as it took the Commission to complete the second reading of the project (1997-2001). 

While the GA has dithered, the Articles have trickled into the day-to-day operation of international law and settled into the consciousness of international lawyers. As the high road of treaty-making and GA declarations is blocked, they have travelled by the low road: NGOs and domestic courts cite them, as do scholars, governments and the ICJ. Sometimes, notably in the early 2000s, such citations may have been in the form of simple signposting. But over time, the Articles have sunk in; they now are the obvious reference point for any debate about State responsibility, trigger serious engagement and sometimes directly shape outcomes (see here). The ILC, to reiterate James Crawford‘s point emphasised in our introductory post, has encoded the way we think about State responsibility. It has done so in the two senses of the word ‘code’: by offering a systematisation of the rules in this field, the ILC has left international lawyers with a code in a legal sense. But perhaps as importantly, the ILC has also provided international law with a way of thinking about responsibility, with concepts and a terminology – with a code in a lexical sense. This terminology can be forbidding, but it sticks. And so, reflecting the inescapable presence of the ILC Articles in legal discourse, students of 2021 effortlessly use the ILC’s burdensome term ‘circumstances precluding wrongfulness’ (where ‘defences’ might have done), often to non-sensical effect, and ageing teachers feel the need to explain what they mean by ‘reprisals’ (a term branded as regressive by the ILC). But beyond the terms, the ILC’s encoding has left us with a mindset for thinking about responsibility: as an objective concept not necessarily dependent on fault or damage; as a general notion applying to custom and treaty breaches alike; as a system of law setting out no primary obligations, but a set of general defences and remedies; and so on and so forth.

The ILC did not, to be sure, invent the law of State responsibility: its synthesis drew on case-law, State practice, and scholarly commentary. But it came up with the blueprint; it moulded the law, and it notably distilled from the mass of material a number of general categories through which we now approach this area of law – internationally wrongful acts, attribution, aid and assistance, etc. This is no mean feat, and the fact that we hardly notice it today only reflects the success of the encoding exercise. For there were alternative approaches, notably in British scholarship: one only need to look at Ian Brownlie’s System of the Law of Nations: State Responsibility (1983), or Philip Allott’s  ‘Unmaking’ article from 1988, the former proceeding from specific causes of action and claims rather than an omnibus notion of wrongfulness, the latter unconvinced that responsibility as a category, situated somewhere ‘between illegality and liability’, could do much useful work. But those alternatives, those other mindsets for thinking about responsibility, have faded from view; if we discuss responsibility today, we speak the ’code‘ of the ILC and think in its categories.

The contributions to the symposium reflect this, and they illustrate the breadth of the ILC’s influence. From climate change to global trade to the conduct of hostilities, few fields of international law are shielded from the ILC’s categories, which have brought, as Kubo Macak notes in his contribution, ‘a welcome degree of clarity that permeates all specific areas of international law’. For the most part (and this, too, is reflected in the contributions) this broad influence does not run very deep: by design, the ILC’s framework stays clear of the primary rules; its main role is to supply categories and structures, and these structures and categories can always be dispensed with by legal speciales under Article 55. As an exercise in unification, the ILC’s residual Articles are modest, but this explains (in Katja Creutz’s term) their ‘tenacity’ – and it explains how quickly they have been embraced by agents of international law over the course of the past 20 years: the ICRC, human rights bodies, investment tribunals and many more rely on the Articles to embed their arguments in the ILC’s general categories, and thereby to enhance their own authority. All this happens to a text of which the GA has merely ‘taken note’, and which gains normative force through accretion, as recorded in the Secretary-General’s successive compilation of decisions (see here for the most recent). ‘Codification light’ seems to have done the trick; the low road has proved a remarkably swift gateway towards authority during the first twenty years of the ILC’s text.

Has this affected the Articles; have they evolved in their 20-year journey? It seems to us that, for the most part, developments so far have left the ILC’s framework and even its rules largely unchanged. This is no doubt in part because of their flexibility; provisions such as Articles 1-3, somewhere between the timeless and the banal, do not require regular updating. What is more, deviations from the ILC’s framework can easily be explained away as lex specialis, leaving the residual regime unaffected. But perhaps it is time, as the Articles enter their third decade, to begin to consider cautious updates and fixes. To give just one example, judging from Alex Mills’ contribution to this symposium, the provisions on attribution would benefit from a careful check-in: perhaps their public-private divide needs to be finessed, at the very least, to fit a world of lean government.

Whatever the GA ultimately decides, the Articles are not the final word on State responsibility. As highlighted by our contributors, current developments and problems do not always fit neatly into the rules codified in the Articles. The rules of State responsibility will need to continually adapt as the character of States’ interactions shift: whether by modification of the general rules, or by the development of specialised rules within individual fields of international law, or both. Some rules of State responsibility of the future may, and most likely will, be different from those in the Articles: we may see new or different rules on attribution, on defences, and so on. But if individual rules on responsibility may change over time, the blueprint provided by the Articles is likely to endure.